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31 Māori possessed tribal sovereignty. He acknowledged that rangatira exercised the authority to enter into a treaty relinquishing their rights to harbour dues even prior to their confederation on 28 October 1835.89 In the Declaration of Independence, these many sovereignties were vested in the collective. Congress would now express the authority or sovereignty of the United Tribes. In negotiating the Treaty of Waitangi, the Crown went beyond Congress and dealt also with individual chiefs further south. This New Zealand example alone contradicts any notion of the dominance of positivist/statist sovereignty in 1840.90 International relations meant different things in the 1830s than in the 1890s. The phrase ‘international law’ was itself not in common use until later in the nineteenth century.91 Busby used the term ‘international’ only once or twice. He did so in expressing his wish to deal with the Chiefs of New Zealand in their collective capacity only ‘in any transaction which might be considered of an international character’; this was in the context of the Chiefs adopting a National Flag.92 More often, he used the term national or nation. James Stephen’s third draft of Hobson’s instructions stated that ‘international relations’ could not be formed with New Zealand as it possessed no national government or ‘civil polity’. Stephen’s Evangelical principles and British imperial policy prompted him to recognise the New Zealand tribes as ‘one independent Community’ with an ‘independent National character’. However, Stephen saw full national or 89 Busby to Col Sec, 11 Sept 1835, No 65/2 (Private & Confid.), pp143-145.

90 See also D Kennedy, ‘International Law and the Nineteenth Century’, p 116: ‘In the first half of the nineteenth century, it seemed obvious [to lawyers, politicians and the like] that there were restrictions on sovereignty, and natural to experience sovereigns always already enmeshed in a system of rules.’ The judgements in Regina v Symonds (1847) NZPCC 387 reveal a much greater concern for Māori property rights or ‘dominion’ (sovereignty) over the soil, than in Wi Parata. See also M Hickford, ‘"Decidedly the Most Interesting Savages on the Globe": An Approach to the Intellectual History of Māori Property Rights, 1837-53’, History of Political Thought, vol 27, no 1, 2006, pp 122-67. McHugh writes that the older feudal idea of personal sovereignty lasted until Dicey’s formulation of state territorial sovereignty crystallized in the second half of the nineteenth century, although the elements of this view could certainly be found already in Vattel’s Law of Nations (1758), see P McHugh, ‘The Lawyer’s Concept of Sovereignty, the Treaty of Waitangi, and a Legal History for New Zealand’, in W Renwick, ed, Sovereignty and Indigenous Rights: The Treaty of Waitangi in International Contexts (Wellington: Victoria University Press, 1991), pp 170-189.

91 See Kennedy, ‘International Law and the Nineteenth Century’. The term ‘International Law’ was used by Wheaton in 1848 in his Elements of International Law published in that year, see S J Anaya, Indigenous Peoples in International Law (New York: Oxford University Press, 2000), (http://books.google.co.nz/, 11 June 2009), p 19.

According to David Armitage, it was Jeremy Bentham who coined the word ‘international’ and the phrase ‘international law’, in 1780, to describe ‘the mutual transactions between sovereigns as such’, see D Armitage, The Declaration of Independence: A Global History (Cambridge, Mass: Harvard University Press, 2007), p 11.

However, the word international still did not appear in Johnson’s dictionary (1824 edition), which must be taken to represent the words in general use, as opposed to words coined or used by philosophers and jurists.

92 Busby to Col Sec, 13 May 1833, No 3, p 32.

32 ‘international’ status as founded on a national civil government, as did Busby and most British officials.93 Therefore although the Treaty recognised the ‘sovereignty’ of Māori rangatira, not all sovereignties were created equal. Johnson’s Dictionary (first published 1755) demonstrates that ‘sovereignty’ had a number of expressions or practical outworkings.94 An 1824 edition of this eminent English book defined sovereignty as ‘supremacy; highest place; supreme power; highest degree of excellence’ (Shakespeare) from the French souveraineté. ‘Sovereign’ was similarly defined as ‘supreme lord’ (Shakespeare), and in its adjectival sense as ‘supreme in power; having not superior’ (Hooker). Beyond these definitions, however, many different forms of rule were defined by the word sovereignty: a ‘princedom’ was a ‘sovereignty’, as was a ‘chiefdom’, a ‘potentacy’, an ‘empery’ (or empire), a ‘majesty’, while ‘dominion’ was defined as a ‘sovereign authority’ (interestingly, giving only the French derivation of domaine in the definition for ‘domain’, rather than the original Latin of dominium). A ‘duchess’ was ‘a lady who had the sovereignty of a dukedom’ (Hume).95 This is to emphasize the point that sovereignty appeared in many guises in the English language of the eighteenth and nineteenth centuries. The sovereignty of a New Zealand rangatira over his hapū could not be equated with the sovereignty of King William IV or Queen Victoria. Busby’s observation of Māori society reflects this inequality of


From all I have been able to learn it appears that there are in the Northern part of the Island from 25 to 30 Tribes of natives who are in every respect independent of each other and who exercise separately, and each without reference to the rest, all the functions of Sovereignty which their simple state of Society requires.96 93 CO 209/4, pp 226-227. See discussion of these complexities in chapter 4.

94 The first real ‘modern’ English dictionary, first published in 1755.

95 S Johnson, A Dictionary of the English Language.

96 Busby to Col Sec, 13 May 1833, No 3, p 31. Wheaton said: ‘A State is also distinguishable from an unsettled horde of wandering savages not yet formed into a civil society. The legal idea of a State necessarily implies that of the habitual obedience of its members to those persons in whom the superiority is vested, and of a fixed abode, and definite territory belonging to the people by whom it is occupied’. He defined a ‘sovereign state’ as ‘any nation or people, whatever may be the form of its internal constitution, which governs itself independently of foreign powers’.

Wheaton defined Indian tribes in relation to the United States as ‘semi-sovereign’ states, who often retained internal/ tribal sovereignty but could not deal with other foreign states. See Wheaton, Elements of International Law (1836), paras 17, 33, and 38, ch 2, part 1. Māori hapū pre-1840 might possibly have been ‘states’ or ‘sovereign states’, as 33 Busby was saying that Māori tribes (or rangatira) exercised only that degree of authority over their people and territorities that reflected their uncivilized or semi-civilized state. And while Edmund Burke compared Indian princes favourably with pre-unification German rulers, he did

not dare compare their sovereignty or authority with that of the English monarch:

If I were to take the whole aggregate of [British] possessions [in India], I should compare it, as the nearest parallel I can find, with the empire of Germany. Our immediate possessions I should compare with the Austrian [Hapsburg] dominions, and they would not suffer in the comparison. The Nabob of Oude might stand for the King of Prussia; the Nabob of Arcot I would compare, as superior in territory, and equal in revenue, to the Elector of Saxony. Cheyt Sing, the Rajah of Benares, might well rank with the Prince of Hesse at least; and the Rajah of Tanjore (though hardly equal in extent of dominion, superior in revenue) to the Elector of Bavaria. The Polygars and the northern Zemindars, and other great chiefs, might well class with the rest of the Princes, Dukes, Counts, Marquisses, and Bishops in the [Holy Roman/ German] empire; all of whom I mention to honour, and surely without disparagement to any or all of those most respectable princes and grandees.97 When Burke compared the authority and dominion of different rulers, he implied a scale or hierarchy of rule. Although various forms of rule exercised ‘supreme power’ (‘sovereignty’) within their respective spheres or domains, this power was not exercised to the same uniform extent. Nor were all sovereigns equal in power with each other. In addition, rule was exercised in different ways or via different mediums. The power of the British Crown was exercised through the mechanisms of parliament, the courts, and executive instruments (Crown charters, Letters defined by Wheaton. Post-Declaration, it is doubtful whether the tribes of Tai Tokerau ‘habitually obeyed’ the Confederation/ Congress, as this existed only notionally.

97 E Burke, ‘Speech on Fox’s East India Bill’, 1 December 1783, in F Canavan, ed, Select Works of Edmund Burke, vol 4 (Indianapolis: Liberty Fund, 1999), (http://oll.libertyfund.org/, 25 June 2009). Burke also qualified this identification to some extent: ‘It is an empire of this extent, of this complicated nature, of this dignity and importance, that I have compared to Germany and the German government; not for an exact resemblance, but as a sort of a middle term, by which India might be approximated to our understandings, and if possible to our feelings;

in order to awaken something of sympathy for the unfortunate natives, of which I am afraid we are not perfectly susceptible, whilst we look at this very remote object through a false and cloudy medium.’ 34 Patent, and the like). A New Zealand rangatira ruled in accordance with tikanga or custom law.

The sovereignty of a New Zealand rangatira obviously looked considerably different from that of British monarchs.98 This recalls Kennedy’s statement, cited in the Introduction, that nineteenth century sovereigns ‘came in a variety of shapes and sizes. Their powers and rights differed’.99 European states recognised the sovereignty of indigenous nations, but this sovereignty was different to that of European states. Moreover, the ‘international law’ rules or conventions that governed the interaction between European states and other states were different in different parts of the globe.100 Even the definition of sovereignty as ‘supreme power’ needs carefully explanation in the context

of an England or Britain by no means uniform in its religious and socio-political composition:

Who was the body or person in the unwritten British constitution who exercised this supreme power? Did ‘supreme power’ mean that the constitutional sovereign was ‘unlimited’ in power or merely that he/she/it was the highest power in the constitution, perhaps with divine or natural law limitations? Blackstone’s Commentaries articulated a standard legal definition of sovereignty as ‘a supreme, irresistible, absolute [and] uncontrolled authority’ which must exist in every form of government.101 The sovereignty of the British constitution was lodged in Parliament. Yet Blackstone also explained that Parliament was itself made up of three separate or ‘entirely independent’ powers, King, Lords, and Commons, who each acted as a check on the others. A century after Blackstone’s Commentaries, Walter Bagehot, in 1867, gave an almost identical

description of the constitution:

98 Chapter four will examine these differences further.

99 Kennedy, ‘International Law’, p 123.

100 Ibid, pp 127-128. Although Wheaton’s definition of a ‘sovereign state’ was based on whether a population ‘habitually obeyed’ a superior person/authority, he was clearly envisaging a European-type constitution as the foundation of sovereign existence: ‘Sovereignty is the supreme power by which any State is governed. This supreme power may be exercised either internally or externally. Internal sovereignty is that which is inherent in the people of any State, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public law, droit public interne, but which may more properly be termed constitutional law.

External sovereignty consists in the independence of one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe, but may more properly be termed international law’. See Wheaton, Elements of International Law (1836), para 20, ch 2, part 1 (and see citation from Wheaton at n 96).

101 Blackstone, Commentaries, vol 1, pp 48-49.

35 A great theory, called the theory of ‘Checks and Balances’, pervades an immense part of the political literature, and much of it is collected from or supported by English experience. Monarchy [the King or Queen], it is said, has some faults, some bad tendencies, aristocracy [the Lords] others, democracy [the Commons], again, others; but England has shown that a Government can be constructed in which these evil tendencies exactly check, balance, and destroy one another – in which a good whole is constructed not simply in spite of, but by means of, the counteracting defects of the constituent parts.102 If Busby and Williams were not familiar with the theory of ‘checks and balances’, they would have still believed that the British constitution protected rights and liberties. As Blackstone explained, ‘each branch [of Parliament] [was] armed with a negative power, sufficient to repel any innovation [or law] which it shall think inexpedient or dangerous’.103 Moreover, Blackstone also explained that the ‘law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding all over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this…’.104 This moral or theological view of ‘sovereignty’ being subject to law was probably shared by both Busby and Williams. It corresponds with understandings of the English constitution as based on Magna Charta (examined in chapter three).

British History: from ‘independent tribes’ to ‘civilized nation’

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